155 Ky. 283 | Ky. Ct. App. | 1913
Opinion of the Court by
Affirming.
The track of the Louisville, Henderson & St. Louis Railroad Company crosses. West Ninth street in Owensboro, Kentucky. The Owensboro Street Railway Company operates its cars along west Ninth str¿et, the trolley being placed under a contract between the two companies twenty-two feet, above the track of the rail
On the first trial of the case, the court instructed the jury in substance that it was the duty of the street railway company to use ordinary care in keeping its trolley wire safe. In handling such a dangerous instrumentality as a high current of electricity ih a public street it was incumbent upon the street car company to use a much higher degree of care to keep its. wire safe. (McLaughlin v. Electric Light Co., 100 Ky., 173; Lancaster v. Central City Light and Power Co., 137 Ky., 361; Thomas v. Maysville Gas Co., 108 Ky., 224.) The jury having found against - the plaintiff and .in favor of the street railway
It'is earnestly insisted that the court erred in granting the railroad company a new trial and setting aside the first verdict as to it. But the circuit court sees and hears the witnesses; he has a large discretion in granting a new trial, and where he grants a new .trial, this court will not disturb his judgment, unless his discretion was palpably abused. In view of all the facts we conclude that the circuit court did not- abuse a sound discretion in ruling as he did on that motion for new trial.
On the appeal of the railroad company from the judgment entered on the second verdict, it is insisted that the court made the same error on the second trial in only requiring Ordinary care on the part of the street railway company, and that he placed the- same-, degree of care upon the railroad company. It is said that this was prejudicial to the railroad company and resulted in the verdict for $1,500 against it, when there was only a verdict for $500 against the street railway company. While the court erred in not imposing a greater degree of care upon the street railway company, we do not see that the railroad company can complain; for it knew of the dangerous current carried by the trolley wire and knew the danger to the people on the street from running its train against the trolley and breaking it. As it knew the danger there was the same necessity for proper care on its part as on the part of the street railway company, and the court should have imposed this higher degree of care on it as well as on. the street railway company; for one who knows the dangerous character of a trolley is under the same necessity to exercise proper care not to knock it down upon the people in the street, as the owner of the trolley who maintains it. The instruction was prejudicial to the plaintiff, but he is not complaining of the verdict rendered on the second trial.
The verdict of the jury shows that they in effect found that the wire was sagged; that the street car company had notice of its condition, or should have discovered it, and that the railroad company also had notice of it. The railroad company maintained a watchman at the crossing and there seems to have been no reason why this watchman who had been there all the morning, could not see the sagged condition of- the wire which was apparent to other persons in the vicinity. When the train returned at noon it backed in, so that the boom which
There was no substantial error of the court in the; admission or rejection of evidence, or in the instructions to the-.jury to the prejudice of the defendants.
The judgment complained of is affirmed on both the., appeals; and. on the cross appeal.